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Off. of Fulton Cnty. Dist. Att'y v. DOJ, No. 18-5902, 2021 WL 4205666 (N.D. Ga. Sept. 16, 2021) (Brown, J.)


Off. of Fulton Cnty. Dist. Att'y v. DOJ, No. 18-5902, 2021 WL 4205666 (N.D. Ga. Sept. 16, 2021) (Brown, J.)

Re:  Request for August 2016 USMS shooting incident

Disposition:  Granting plaintiff's motion for attorney fees and costs; awarding plaintiff $114,637.23 in attorneys' fees and $1,599.88 in costs

  • Attorney Fees, Eligibility:  "The Court finds, and Defendant does not dispute, that . . . Plaintiff 'obtained relief' because it ultimately received the 7(A) Records it sought in this lawsuit."  "Plaintiff obtained this relief through a 'voluntar[]y or unilateral change' in the agency's position because Defendant elected to disclose the 7(A) Records after first withholding them under Exemption 7(A)."  "The only dispute is whether Plaintiff’s claim for the 7(A) Records was 'not insubstantial.'"  "Plaintiff says the claim was substantial because it involved 'potentially meritorious requests for information.'"  "Defendant says the claim was insubstantial because '[t]he law clearly supported the USMS' original decision to withhold the 7(A) Records under FOIA Exemption 7A.'"  "The Court agrees with Plaintiff."  The court explains that "Defendant has not shown it correctly withheld the 7(A) Records under Exemption 7(A), and . . . [the] records constitute a sizeable portion of the total records sought by Plaintiff in this case."
  • Attorney Fees, Entitlement: The court holds that "[a]ll four factors favor Plaintiff, and it is thus entitled to fees."  First, the court notes that "Plaintiff's discussion of factors 1–3 is limited to a single paragraph devoid of any citation to authority or any meaningful citation to the record."  "Plaintiff cites the sworn declaration of ["an experienced litigator in the Atlanta area"] . . . [who] claims – while opining on the reasonableness of Plaintiff's requested fee amount – that '[t]his lawsuit involved a matter of great public importance,' the FOIA records were 'important to [Plaintiff's] investigation,' and the production of those records 'would have been in the public interest.'"  "While conclusory, the Court accepts these assertions as the importance of a district attorney investigating the death of a citizen is fairly obvious."  "More importantly, Defendant has not opposed or otherwise responded to Plaintiff's argument."  Additionally, "the Court takes judicial notice of several news articles, petitions, and other public documents discussing [the subject's] death."  Also, "the Court cannot see how Plaintiff – a district attorney's office – could benefit commercially from the records sought."  Regarding the fourth factor, the court relates that "Defendant claims it acted reasonably because 'the law clearly supported the USMS' original decision to withhold the 7(A) Records under FOIA Exemption 7A.'"  "But the Court has already determined the records were not exempt."  "And Defendant has done nothing to show its assertion of Exemption 7(A) was reasonable though ultimately incorrect."  "So factor 4 also weighs in Plaintiff's favor."
  • Attorney Fees, Calculations:  First, regarding the hourly rate, "[g]iven ["an experienced litigator in the Atlanta area['s]"] sworn declarations, and the Court's own knowledge and experience of the Atlanta legal market, the Court finds Plaintiff's hourly rates are reasonable."  The court relates that "Defendant initially claimed [the experienced litigator's] first affidavit was insufficient because (1) [the litigator] has no experience with FOIA cases and (2) he does not say Plaintiff's hourly rates are reasonable for FOIA cases specifically."  "But [the litigator] has since provided a second affidavit that cures those alleged deficiencies."  "So Defendant's argument fails."

    The court then reviews defendant's requests for deductions.  First, the court reviews defendant's request to deduct fees for plaintiff's work "'preparing a response to [Defendant's] motion to strike the original complaint'" and finds that, contrary to defendant's description of the outcome, "[t]he Court denied Defendant's motion as moot, which is exactly what Plaintiff asked it to do."  "So, technically, Plaintiff did prevail on the motion."  "But Defendant's argument fails for a more important reason."  "'Although the Eleventh Circuit has directed courts to deduct fees for discrete and unsuccessful claims, there is no requirement that the district court deduct fees for discrete and unsuccessful motions.'"  "So even assuming Plaintiff did not prevail on the motion to strike, that does not require a deduction."  "Plaintiff's response to the motion 'was not frivolous and was [work] for which an attorney would bill a client of means who was seriously intent on vindicating similar rights.'"  The court then rejects defendant's argument concerning plaintiff's motion for discovery because "Plaintiff was entitled to seek discovery during [the] period [of time at issue]."  "And the discovery it ultimately sought was not unreasonable."  The court does deduct "$22,280.95 from Plaintiff's fees" because "Plaintiff's Touhy work, by definition, was not done in a FOIA case."  The court finds that "[t]hat is so even when there is overlap among Touhy and FOIA requests, as Plaintiff claims is the case here."  Finally, the court rejects defendant's attempt to reduce fees for time plaintiff spent litigating the fee award because the court finds that "[i]n this Circuit, 'attorney's fees may be awarded for time spent litigating the fee claim.'"
Court Decision Topic(s)
District Court opinions
Attorney Fees
Updated October 13, 2021